In re Brandon H.

Filed 6/26/07 In re Brandon H. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Lassen)

----

Brandon H., a minor, was declared a ward of the juvenile court (Welf. & Inst. Code, 602) after admitting to having committed a lewd or lascivious act with a child under 14 years of age in violation of Penal Code, section 288, subdivision (a), a felony. A second similar count was dismissed with a Harvey^[1]waiver. The court placed him on probation and ordered out-of-home placement. Over the course of approximately four years, the minor was placed in a number of residential facilities, admitted violating probation on several occasions by failing to follow all rules at several of those facilities, and ultimately exhausted all suitable placements, either due to his continuing status as a sexual predator/pedophile, his age or both. The court finally committed the minor to the California Youth Authority (CYA; sometimes referred to as the Department of Corrections and Rehabilitation, Division of Juvenile Justice, or DJJ) for six years and ordered that he register as a sex offender.

On appeal, the minor contends the juvenile court abused its discretion by committing him to the CYA, violating his rights under Welfare and Institutions Code, section 734 and denying him due process. We disagree and shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On March 2, 2001, Mendocino County Sheriffs Deputy Christian VanPatten responded to a call regarding a child molestation. The victims mother, Katrena D., told Deputy VanPatten she was checking on her four-year-old son, Michael D., that afternoon and found him behind the workshop with Brandon H., a teenager in the neighborhood. She was not comfortable with her son hanging out with Brandon, so she took him inside.

Later, Katrena asked her son what he was doing behind the workshop with Brandon. Michael told her that Brandon asked him to pull down his pants and, although he did not want to, Brandon persisted and Michael eventually complied. After that, Michael told her, Brandon touched Michaels wiener, referring to his penis.

The next day, Deputy VanPatten went to Brandons home to investigate Michaels claim. Brandon told VanPatten that he had been out playing in the neighborhood when Michael approached him and asked if he wanted to go on a treasure hunt. Brandon agreed and followed Michael behind the workshop. VanPatten asked what happened behind the workshop, and Brandon eventually admitted tearfully that he had asked Michael to pull down his pants and told Michael he wanted to see his penis. Brandon also admitted that he caressed Michaels penis.

Deputy VanPatten later learned that Brandons mother had once operated a daycare out of her residence.

In a subsequent telephone interview by Deputy Sheriff Keiser, Brandon stated that he had asked Michael to show him his privates and had touched him briefly, and admitted that it had happened twice that same day, both times behind the barn. Brandon also admitted to having done the same types of things to his six-year-old cousin, R.R, approximately 10 times over the past two years, and that R. had also occasionally touched Brandons penis as well.

Keisers subsequent interview of R. confirmed Brandons story, but also revealed that Brandon had orally copulated R. and had, on one occasion, asked R. to orally copulate him. When questioned about this new information, Brandon admitted to Deputy Keiser that he had orally copulated R. a few times. Brandon also told Keiser that he may have touched between five to ten children at his mothers daycare.

The petition, filed on April 3, 2001, charged the minor with lewd or lascivious acts with a child under 14 years (Michael D.), a felony (Count I), and lewd or lascivious acts with a child under 14 years (R.R), also a felony (Count II), and alleged him to be within the provisions of Welfare and Institutions Code, section 602. The minor denied those allegations on April 16, 2001.

On May 7, 2001, the minor admitted to and was found to have committed the acts alleged in Count II. Count I was dismissed with a Harveywaiver and the court ordered the minor detained until further disposition.

At the May 21, 2001 disposition hearing, the court adopted the findings and recommendations in the probation report, declared the minor a ward of the juvenile court and ordered him detained in Mendocino County Juvenile Hall pending suitable out-of-home placement.

On June 11, 2001, the minor was removed from juvenile hall and placed in the Fresno Unity Group Home (hereafter Fresno Unity), a facility specializing in sexual offender treatment.

In a November 20, 2001 report, the probation officer noted that the minor was struggling at Fresno Unity, having difficulty following program expectations and failing to comply with program requirements. Probations request for a psychological evaluation was granted on November 20, 2001.

The case plan prepared by the Mendocino County Juvenile Probation Department for the November 20, 2001 hearing reflects that [the minor] is a high risk re-offender. Most likely he will remain in a treatment facility until he reaches the age of majority. The court found that out-of-home placement was still necessary and appropriate, and continued him on probation. The courts order also notes that the minors progress has been minimal.

On December 18, 2001, a petition alleging violation of probation was filed following termination of the minors placement at Fresno Unity for failure to obey all rules of placement. The minor admitted the allegation on December 21, 2001, and was remanded back to the custody of the probation department until further disposition.

At the disposition hearing on January 7, 2002, the court adopted the findings and recommendations in the probation report, continued the minor as a ward of the court with all previous conditions of probation to remain in effect, and ordered that the minor again be detained in juvenile hall pending out-of-home placement.

On January 29, 2002, the minor was placed in Unicorn Youth Services (hereafter Unicorn) in Philo, California.

On May 13, 2002, the court held a 12-month placement review hearing. The probation report noted that the minor was, over the prior two months, making progress, actively participating in sexual perpetrator group counseling, sports and school, but that on-going treatment for a significant period of time was necessary in order to achieve the goals set for him. The quarterly report prepared by Unicorn dated March 20, 2002, concluded the minor was at high risk to re-offend due to the number of victims he has had, the use of coercion and manipulation, his lack of empathy, low social skills and poor self-esteem.

The court adopted the findings and recommendations of the probation report, ordered that the minor remain a ward of the court and continued all previous terms and conditions of probation.

On October 15, 2002, the court conducted a semi-annual review. At that time, probation recommended a permanent out-of-home living arrangement for the minor. Unicorns June 19, 2002 quarterly report again concluded the minor was at high risk to reoffend due to the number of victims he has had, the use of coercion and manipulation, his lack of empathy, low social skills and poor self-esteem, values and identity. The court adopted the findings and recommendations in the probation report, ordered that the minor remain a ward of the court with all previous terms and conditions of probation to remain in effect, and ordered that he remain at Unicorn.

The court held a second semi-annual placement review hearing on April 15, 2003. The February 5, 2003 quarterly report prepared by Unicorn noted that, although [t]he long term plan has been for family reunification[,] treatment of the minor would likely extend beyond his 18th birthday due to the severity of his crimes and the extensive work that needs to be done in order for [the minor] to become a safe person, ready to rejoin society. Staff also reported that the minors family had expressed that the minor would not be permitted back in the home once treatment was completed, due in large part to the fact that the minor had previously molested his sister, who still lived in the family home. Staff again concluded that the minor continued to be at high risk to reoffend. Probation reported that planned permanent out-of-home living was still necessary.

The court adopted the findings and recommendations in the probation report and ordered that the minor remain a ward of the court, residing at Unicorn, with all previous terms and conditions of probation to remain in effect.

On August 21, 2003, the minors therapist, Dave Covey, informed probation that the minor continues to exhibit predatory behavior, and remains a risk to the community.

Sometime thereafter, the minors parents relocated to Lassen County. On September 11, 2003, the court continued the minor as a ward of the juvenile court, with all previous terms and conditions of probation to remain in effect, and granted probations request to transfer the case, in its entirety, to Lassen County. The Lassen County Juvenile Court accepted the transfer of the minors case on September 26, 2003. Although the case was transferred, the minor remained at Unicorn pursuant to court order.

On November 17, 2003, the Lassen County court held a six-month review hearing. According to the report submitted by the Lassen County Probation Department, Covey reported that, although the minor was making some progress, he is still classified as a high risk sex offender and at great risk of re-offending. The report also stated, Mr. Covey, as well as the rest of the Unicorn Staff feel that [the minor] has not made significant progress to be down graded [sic]to a moderate sex offender. Mr. Covey is concerned that due to [the minors] lack of adequate progress to be downgraded to a moderate risk sex offender, after his completion of the Unicorn Program, he be placed in a higher level of care to include the California Youth Authority. According to the report, the minor also considered himself a high-risk sex offender still and . . . not ready to return to the community.

The juvenile court adopted the recommendations of the probation report, continuing the minor as a ward of the court, with all previous terms and conditions of probation to remain in effect. The courts order also required the minor to obey all rules and instructions of the Unicorn Staff.

On May 3, 2004, the court held another six-month review hearing. The report filed by probation noted that the minor was still considered to be a high-risk sex offender, that the minors parents did not want him to return to the family residence or reside in Lassen County, and that, although the goal of the Unicorn staff is to transition the minor to independent living in Humboldt County once he graduates from high school, staff does not feel the minor possesses the skills to maintain appropriate behavior in the community or to refrain from reoffending. The report also pointed out that, due to the minors age, his placement would soon end and he would either be returned to the community or placed in a more secure setting. The report stated it would not be appropriate to return the minor to the community before he has completed his therapy and knowing all that we do about this young man[;] instead, the minor is in need of a secure facility for the protection of the community. It was further noted in the report that the Humboldt County Probation Department indicated it could not provide the type of supervision needed to assure [the minor] would not be a risk in their community. While probation commended the minor on his progress, it noted that he still needed constant supervision and continued services and, [b]ecause of [the minors] age and lack of alternatives, the Probation Department will respectfully recommend that [the minor] be committed to the California Youth Authority.

On April 20, 2004, Gregory Sims, Ph.D., clinical director at Unicorn, submitted a letter to probation stating that, while he continued to regard the minor as a high risk for remolest, he recommended against commitment to the CYA, stating that [a] very well orchestrated yet less restrictive program than CYA would serve [the minors] treatment needs and the communitys interest most effectively.

On May 3, 2004, the court ordered the parties to continue to explore options for placement for the minor, including the possibility of continued placement at Unicorn past the age of 19 and placement at the Briarwood Treatment Facility in Nevada (hereafter Briarwood).

On June 4, 2004, probation sent a letter to the court regarding its efforts to find suitable placement for the minor. The letter reported that (1) Briarwood considered the minor to be high risk and therefore rejected the possibility of placement at their facility; (2) according to Community Care Licensing, wards of the court are not permitted to remain in placements after the age of 18 years unless they have not graduated from high school and will graduate prior to their 19th birthday; (3) probations significant time spent attempting to locate a residential treatment program that would accept the minor revealed that [t]here are no such contract facilities in the State of California; and (4) although the minors mother was able to locate a locked facility for 18- to 21-year olds outside the State of California, the minor was not eligible for probation supervision services in that facility. It was also noted that Kevin Kelley, program director at Unicorn, still considered the minor to be a high-risk offender and would continue to do so until [the minor] stops fantasizing about children[,] and that the minor had no remorse or sympathy for his victims. Based on those facts, probation recommended that the court adopt the findings in its prior report.

On June 7, 2004, the court ordered the parties to provide authority regarding whether the minor could be sent to CYA for a diagnostic or commitment without having violated probation, given that current placement cannot continue past minors 19th birthday on 7/2/04. Counsel for the minor responded, in a letter brief, that neither commitment nor diagnostic examination under those circumstances are permitted under Welfare and Institutions Code, section 777. The People agreed.

On June 21, 2004, the court received a letter from Dr. Sims. Although previously assessed as a high-risk sex offender, the minor, in Simss opinion, had made significant progress in the program at Unicorn, and any gains made would be obliterated by a commitment to CYA. Specifically, Sims noted that the minor would receive no treatment, simply being incarcerated there, and that the conditions at CYA are not conducive to growth. Concluding that [t]he likelihood of recidivism could be increased through placement at CYA, Sims recommended that continued treatment ought best to occur within a growth-promoting social circumstance.

The court also received a letter written by the minor himself, stating, among other things, that he did not want to go to CYA.

On June 21, 2004, the court ordered the parties and probation to continue their efforts to find an appropriate placement for the minor, and to investigate adult residential treatment programs.

Probation reported on its efforts to find suitable placement in a letter to the court dated June 30, 2004. The letter reiterated that there are no residential treatment facilities in California for adult sex offenders. Although probation was able to secure a letter of acceptance for the minor from Benchmark Behavioral Health Systems in Utah, it was noted that any request for supervision by the State of Utah would be denied. The letter also noted that New Directions of Hope (hereafter New Directions), a facility in Redding, California, was an option subject to completion of a comprehensive risk assessment, as was Agape in Reno, Nevada. It was further noted that, although the minor expressed a desire to remain in Humboldt County to attend school and continue services, a request for supervision by probation in that county would also be denied. It was probations opinion that the best alternative was for the minor to remain in Lassen County on Home Electronic Monitoring and intensive supervision provided by this department.

On July 1, 2004, the court ordered that the minor be temporarily placed at home on an electronic monitoring system (EMS), and directed probation to pursue services for the minor, including residential programs in Minnesota.

On July 9, 2004, probation reported that Narum and Associates in Humboldt County (hereafter Narum) would consider acceptance of the minor in its offender program, but would only do so if he was supervised by Humboldt Countys probation department. Unfortunately, that probation department indicated that it would deny any such request for courtesy supervision. Also considered as possible options for placement were Alpha Human Services (hereafter Alpha) and the Emily Griffith Center in Colorado (hereafter Griffith). However, neither of those programs appeared to be viable options under the specific circumstances of the case. Given the absence of possible options, probation and the minors mother agreed to contact New Directions to schedule a risk assessment required prior to consideration of placement at that facility. The letter reflects that the documentation was submitted and probation was waiting to hear back from New Directions.

On July 23, 2004, probation reported that, although placement of the minor had been denied by Griffith, the results of the assessment from New Directions were still pending and a request for consideration had been made to Love in Action, a facility in Memphis, Tennessee.

At the August 23, 2004 hearing, the People provided the results of the risk assessment from New Directions to the court for its review, and reported that, although Love in Action accepted the minor into its program, there was some concern that the program was not a good fit for the minor. The court ordered that probation send the risk assessment to Love in Action to determine whether the minor would still be acceptable under that program. The minors mother also reported to the court that his 15-year-old sister had returned to live in the family home.

On August 26, 2004, probation reported that Love in Action had denied the minors acceptance into the program after having received and reviewed the risk assessment from New Directions. The courts August 30, 2004 order reflects that neither Love in Action nor Alpha were suitable placements for the minor, and that probation would continue to investigate New Directions and Shasta Treatment Center to determine if counseling could be provided to the minor. The court also accepted the parties stipulation for temporary placement of the minor at New Directions for interim services.

At the September 13, 2004 hearing, probation reported that the minor would enter New Directions and start receiving services temporarily the following week. The minors counsel reported that investigation was still ongoing with respect to Alpha. The court accepted the parties stipulation to add, as a new condition to probation, minors participation in treatment at New Directions.

On October 6, 2004, the minor was terminated from New Directions for failure to pay for services, living in the same house with one of his victims (his sister) and deviant sexual behavior with a female dog. As a result of termination from that program, a notice of violation of probation was filed on October 8, 2004.

On October 12, 2004, the court found that continuance in the parents home was contrary to the minors welfare and ordered that he be detained at juvenile hall pending further hearing. Counsel was ordered to work out a placement for the minor, and to research the parents financial responsibility for a 19-year-old. The courts October 14, 2004 order reiterates that counsel are working on placement for minor, and advises that placement with supervision is necessary.

On October 19, 2004, New Directions agreed to take the minor back if payment issues could be worked out. On October 26, 2004, New Creations Halfway House in Redding (hereafter New Creations) agreed to accept the minor into its program, with probation having arranged funding for the first three months. New Directions also agreed to accept the minor back upon the signing of a contract of financial responsibility. Although the issue of payment for New Directions was still unresolved, the court noted that the plan for the minor to live at New Creations and attend New Directions for Hope is the best alternative available, and the funding issues need to be resolved by the next hearing date.

On October 29, 2004, the minor formally admitted the allegations of probation violation arising out of his termination for the program at New Directions.

Another six-month review hearing was held on April 4, 2005. The probation report noted that the minor was doing well in therapy at New Directions, and doing better at New Creations since obtaining full-time employment at a computer store. Probation recommended that the status quo be maintained. The court adopted the findings and recommendations in the probation report, as modified, and ordered that the minor continue his participation at both New Directions and New Creations.

On July 2, 2005, the minor turned 20 years old.

On July 5, 2005, a notice was filed alleging, as a violation of probation, the minors failure to obey all rules resulting in termination of his residency at New Creations. The court ordered the minor be detained at juvenile hall pending further hearing.

On July 19, 2005, the minor admitted the allegations in the July 5th notice, and the court referred him to CYA for a 90-day diagnostic evaluation.

The diagnostic evaluation report filed by CYA on November 9, 2005, recommended as follows: It is recommended that [the minor] be placed in a highly structured residential facility at the County level that offers extensive sex offender counseling and educational services. If [the minor] should fail such a program or if such a program is not available, a commitment to the [CYA] would be appropriate.

The report filed by the probation department on November 22, 2005, advised that the minor no longer qualifies for the type of facility he needs, and that probation has been unable to locate a highly structured residential facility that can adequately supervise a probationer who attends college and/or has a job, especially a high risk, predatory, diagnosed pedophile. The report also pointed out that the [CYA] has programs that can also treat [the minor] for his personality issues, such as suppressed anger and social avoidance, as well as his sexual disorder[,] and noted that there were no alternative options for [the minor] to receive sex offender counseling other than what the [CYA] can provide. The probation report concluded that commitment to CYA was appropriate.

At a hearing on November 29, 2005, the court indicated that it had read and considered the reports from probation and the CYA. The hearing was continued so that the minors counsel could investigate the possibility that New Directions might allow the minor back into the program.

At the December 13, 2005 hearing, probation informed the court that the structure of New Creations had changed such that the focus was now on family reunification, with children staying in the facility, thus making it unsuitable for placement of the minor. In addition, the services required by the minor could not be provided because the only therapist on staff was not available 24 hours a day and did not necessarily focus just on sex offender counseling.

The court reiterated the findings in the CYA evaluation that the minor had an extensive history of molesting young children, had been assessed as a high risk to reoffend, and required sex offender counseling, victim witness counseling and educational vocational services. The court also reiterated CYAs recommendation that the minor be placed in a highly structured residential facility that offers extensive sex offender counseling and education services[,] noting that CYA indicated there was no such program available, but that the services can be provided by the [CYA]. Finding no suitable residential facility, the court adopted probations recommendations and committed the minor to CYA, setting the maximum term of confinement at six years.

The minor filed a timely notice of appeal.

DISCUSSION

The minor contends that the juvenile court abused its discretion by committing him to CYA without a finding that such commitment would benefit him through rehabilitation or rehabilitative punishment. Specifically, he urges that the court erred because it ordered the commitment solely because he was no longer eligible for the program he had been in, and no other locked facility could be found to take him. We disagree.

No ward of the juvenile court shall be committed to the [CYA] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [CYA]. (Welf. & Inst. Code, 734.)

A commitment to the [CYA] is within the sound discretion of the juvenile court and its decision will not be reversed unless there is a showing that the court abused its discretion. (In re Michael R. (1977) 73 Cal.App.3d 327, 332-333.) A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them. (Ibid.)

While it is the general rule that commitments to CYA are to be made only in the most serious cases and only after all else has failed (In re Aline D. (1975) 14 Cal.3d 557, 564), the circumstances of a particular case may warrant such a commitment

despite the availability of an alternative disposition. (In re Gregory S. (1978) 85 Cal.App.3d 206, 212-213, citing In re John H. (1978) 21 Cal.3d 18, 27.)

[T]he juvenile court must consider each individual case on its merits without a mechanized approach based solely on the seriousness of the offense and must evaluate the appropriateness of the available lesser alternative dispositions in light of the purposes of the Juvenile Court Law. Before committing a minor to the [CYA], there should be some evidence in the record to support a finding that all these purposes cannot be accomplished by placement in a county facility. (In re Michael R., supra, 73 Cal.App.3d at p. 340.)

There is no dispute that this minor is a high risk, predatory, diagnosed pedophile[,] with an extensive histroy of molesting young children, and who is a high risk to reoffend. There is also no dispute that he required out-of-home placement in a highly structured facility offering extensive sex offender counseling as well as educational services. The record spans nearly five years, and chronicles extensive efforts by many, including minors own parents and counsel, the prosecutor, probation, numerous residential facilities, the CYA and the juvenile court, to identify such a facility, keeping in mind the minors needs as well as the safety of the community at large. It is true, as the minor points out, that he made some progress at Unicorn and even finished high school. However, even he concedes that it was never contemplated that he could be released into the community because his status remained that of a sex offender with a high risk of re-offending if he were left unsupervised. As a consequence, the availability of appropriate full-time supervision was a prerequisite to finding any given facility suitable. The record reflects that several of the programs considered, both in California and out-of-state, might have been viable but for the fact that the necessary supervision would not or could not be guaranteed.

The minor focuses on the fact that Dr. Sims recommended against commitment to the CYA, opting for a less restrictive program that would serve both the minors needs and those of the community. However, we cannot help but note that Sims expressed that opinion without offering a single alternative for placement, suitable or otherwise, and despite the fact that he continued to regard the minor as a high risk for remolest[.]

The minor also urges that the court did not consider all the choices available, and choose one that would be of benefit in [the minors] rehabilitation, in order to it [sic] to avert a placement that posed a real threat of harm to [the minor].

To the contrary, it appears that no stone was left unturned, over several years, to find suitable placement. At the time of the dispositional hearing, there were simply no options; not necessarily because of an unwillingness to accept the minor into a particular program, but rather because of the minors particular circumstances. For instance, given the minors age, he no longer qualified for Unicorn, and given his criminal background as a pedophile and a high-risk sexual predator, placement at the newly structured New Creations was no longer an option. Similarly, for reasons including the minors age, the nature of his admitted offenses, his continued assessment as being high risk to reoffend, his termination from prior programs, and his need for constant supervision, placement at facilities such as Agape, Narum, Briarwood, Benchmark, Alpha, Griffith, Love in Action and Shasta Treatment Center was not possible, and placement back in the home was out of the question.

The minor urges that [n]o one, including the caseworker who prepared the diagnostic report for the [CYA], suggested that CYA commitment offered any benefit to [the minor] that could not be realized in a less restrictive environment. Again, no one seems to be in disagreement on that point. Unfortunately, a less restrictive environment was not available, despite sustained, monumental efforts by all involved, including the minors parents, to find one.

In noting the absence of alternatives, the court found that the services required by the minor could be provided by the CYA. While commitment to the CYA may have been the last choice for placement of this minor, it was the only choice of facilities that could or would accept him and could provide him with the highly structured environment and counseling and treatment he needed.

There is nothing in the record, argues the minor, to demonstrate [his] commitment to the [CYA] was motivated by a danger to public safety if he were permitted to remain in a residential treatment facility like the ones he had been housed in since his initial confinement. He further argues that there is simply no doubt that, if a residential treatment program could have been found in time, [he] could have been placed there without posing a threat to society. That is precisely the point. No appropriate facility could be found that would accept him into their program, either because of his need for continued sex offender counseling, victim witness counseling and educational vocational services he required in a highly structured environment, or because of the specific requirements and limitations of the respective facilities themselves.

The minor also argues that, in order to impose a CYA commitment as punishment, [the court] must find that the minor has demonstrated a need for such punishment, and that he will benefit from it. The argument is misplaced. The record reflects that the court committed the minor to the CYA not to punish him, but rather because the CYA could provide him with the services he needed, and all other options had been exhausted. From that determination, we can infer that the court was fully satisfied of the probability that the minor would benefit from the treatment and services provided by the CYA.

The minor also contends that his commitment to CYA violated due process. However, other than mentioning the words due process in a heading in his opening brief, he neither discusses nor develops that theory. Where a point is merely asserted by counsel without any argument of or authority for it, it is deemed to be without foundation and requires no discussion. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Hardy (1992) 2 Cal.4th 86, 150; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136; People v. Coley (1997) 52 Cal.App.4th 964, 972.)

There is substantial evidence to support the findings of the juvenile court, and we find no abuse of discretion in its commitment of the minor to CYA.

DISPOSITION

The order of the juvenile court is affirmed.

MORRISON , J.

We concur:

NICHOLSON , Acting P.J.

ROBIE , J.

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^[1]People v. Harvey (1979) 25 Cal.3d 754.

^[2] In light of the minors admission of Count II and the Harvey waiver as to Count I, the facts are taken from the probation report.